Citation Nr: 9834419
Decision Date: 11/20/98 Archive Date: 11/24/98
DOCKET NO. 94-29 158 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: AMVETS
ATTORNEY FOR THE BOARD
W. Sampson, Associate Counsel
INTRODUCTION
The veteran's active military service extended from March
1969 to December 1971. He had service in the Republic of
Vietnam from November 1969 to November 1970.
This appeal comes before the Board of Veterans' Appeals
(Board) on appeal from a December 1992 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Montgomery, Alabama. That rating decision denied service
connection for post-traumatic stress disorder (PTSD).
This case was previously remanded in June 1996 for additional
development of the veteran's claimed stressor, and additional
medical records. Unfortunately, the requested development
was not completed and this case is again remanded to the RO.
REMAND
Establishing service connection for PTSD requires (1) a
current clear medical diagnosis of PTSD (presumed to include
the adequacy of the PTSD symptomatology and the sufficiency
of a claimed in-service stressor); (2) credible supporting
evidence that the claimed in-service stressor actually
occurred; and (3) medical evidence of a causal nexus between
current symptomatology and the specific claimed in-service
stressor. Cohen v. Brown, 10 Vet. App. 128, 138(1997);
Moreau v. Brown, 9 Vet. App. 389, 394-95 (1997);
38 C.F.R. § 3.304(f) (1998); see also VA ADJUDICATION
PROCEDURE MANUAL M21-1 (MANUAL M21-1), Part VI, 11.38 (Aug.
26, 1996) (reiterating the three PTSD service-connection
requirements set forth in regulation § 3.304(f) and
specifically requiring “credible supporting evidence that
the claimed inservice stressor actually occurred”). The
MANUAL M21-1 provisions in paragraph 11.38 are substantive
rules which are “the equivalent of [VA] [r]egulations”.
See Hayes v. Brown, 5 Vet. App. 60, 67 (1993) (citing Karnas
v. Derwinski, 1 Vet. App. 308, 313 (1991)). With regard to
the second criterion, the evidence necessary to establish
that the claimed stressor actually occurred varies depending
on whether it can be determined that the veteran “engaged in
combat with the enemy.” 38 U.S.C.A. § 1154(b) (West 1991);
see also Gregory v. Brown, 8 Vet. App. 563 (1996); Collette
v. Brown, 82 F.3d 389 (Fed.Cir. 1996).
The MANUAL M21-1, as recently revised, provides that the
required “credible supporting evidence” of a combat
stressor “may be obtained from” service records or “other
sources.” See Moreau v. Brown, 9 Vet. App. 389 (1996); see
also Doran v. Brown, 6 Vet. App. 283 (1994). However,
although corroborating evidence of a stressor is not
restricted to service records, if the claimed stressor is
related to combat, and in the absence of information to the
contrary, receipt of any of the following individual
decorations will be considered evidence of participation in a
stressful episode:
Air Force Cross Air Medal with “V” Device
Army Commendation Medal with “V” Device
Bronze Star Medal with “V” Device
Combat Action Ribbon
Combat Infantryman Badge
Combat Medical Badge
Distinguished Flying Cross
Distinguished Service Cross
Joint Service Commendation Medal with “V” Device
Medal of Honor
Navy Commendation Medal with “V” Device
Navy Cross
Purple Heart
Silver Star
See MANUAL M21-1, paragraph 11.38(c) (1).
The regulations governing service connection for PTSD differ
from those governing service connection for other conditions
because they require evidence of an inservice stressor rather
than evidence of “incurrence or aggravation” of a disease
or injury in service or within a post-service presumptive
period. The United States Court of Veterans Appeals (Court)
has held that a physician’s opinion of causal nexus, in
certain circumstances, may serve to establish inservice or
presumptive-period incurrence or aggravation even when the
examination on which the opinion was based was made many
years after service. See e.g., ZN v. Brown, 6 Vet. App. 183
(1994). However, since the requirements in § 3.304(f) for a
“link, established by medical evidence, between current
symptomatology and the claimed inservice stressor” and for
“credible supporting evidence that the claimed inservice
stressor actually occurred,” indicate that something more
than medical nexus is required, the Court recently held in
Moreau, supra, that “credible supporting evidence of the
actual occurrence of an inservice stressor cannot consist
solely of after-the-fact medical nexus evidence.”
In this case, the veteran contends that he suffers from PTSD
a result of his exposure to traumatic and stressful events
during his military service in Vietnam. Specifically, he
alleges that he witnessed numerous rocket attacks on the
petroleum yard where he worked, witnessed many of his
friends’ deaths, including watching a rocket hit one of his
close friends, causing his intestines to spill out of his
body, and seeing a co-worker blow up while cutting a 55
gallon drum with a blow torch. He avers that he now suffers
from extreme anxiety, severe nightmares, severe flashbacks,
depression, and insomnia. He alleges that he has been
hospitalized in VA medical centers at least ten times with
PTSD. He claims that he has suffered from these problems
ever since he was discharged from service.
The veteran's discharge papers show that the veteran served
in the Republic of Vietnam from November 1969 to November
1970. His occupational specialty was petroleum storage
specialist. In October 1991, the veteran filed an informal
claim for service connection for post-traumatic stress
disorder. In February 1992, he submitted a statement
describing his experience in Vietnam.
My duty was to run and operate a pump
station. . . . In many cases we were
under enemy [attack]. . . . My worst
experience was to see one of my buddies
killed during an attack on the [pump
station]. As a result of my tour in
Vietnam, [I] now have flashbacks of
different events that happened. Some
appearing in dreams and nightmares.
The veteran's personnel records were obtained and associated
with the claims file. These verify his occupational
specialty in petroleum storage but do not show any combat
experience or exposure.
In April 1992, the veteran was afforded a VA PTSD
examination. He related his experiences in Vietnam. The
examiner wrote, “[h]e was not actually in combat but the
petroleum yard received frequent rocket attacks.” He
described losing friends during rocket attacks, seeing one of
his friends blown up by a rocket, and witnessing another
friend who “had all of his intestines blown out and was
killed.” The diagnoses were PTSD and chronic paranoid
schizophrenia. The examiner noted that the veteran had
“fairly constant hallucinations of voices, usually those of
combat situations.”
The veteran's claim for service connection for PTSD was
denied by the RO in May 1992 because he had not provided the
RO with detailed information to confirm the occurrence of his
claimed stressors, including information concerning the
personnel involved and especially the buddy he witnessed
getting killed. In June 1992, the RO received a response
from the veteran describing in more detail the persons he saw
killed or wounded in Vietnam. He also submitted a copy of a
report of his VA hospitalization from April 1992 to May 1992
showing a diagnosis of PTSD, “delayed type with affective
features.” He was hospitalized again from June to July 1992
for multiple medical disorders, as well as complaints that he
was experiencing auditory and visual hallucinations. In
December 1992, the RO again denied the veteran's claim for
service connection for PTSD.
In January 1993, the veteran was readmitted to the VA
hospital. The report noted that the veteran had “profound
nightmares of the Vietnam War, relives [the] Vietnam War,
lost close friends in [the] Vietnam War, and gets depressed.
He has auditory hallucinations, visual hallucinations,
depressed mood, delusions of persecution, paranoid ideation
and ideas of reference.” The assessment was PTSD, delayed
type with schizo-affective and paranoid features.
In June 1996, the veteran's claim was reviewed by the Board
and remanded for additional development of the veteran's
claimed stressors and medical evidence of his claimed 10
hospitalizations for PTSD. Records of his hospitalization at
the VAMC in Tuskegee were received showing several periods of
hospitalization dating from October 1991 to June 1994, all
showing diagnoses of PTSD as well as numerous other
disorders. Another statement was received by the veteran in
September 1996 describing his claimed stressors and listing
three names of persons he knew who were killed in action in
Vietnam. He could not remember the name of the person killed
while cutting a 55 gallon drum with a torch. He repeated his
description in somewhat greater detail in another January
1997 statement. In May 1997 and July 1997, records of his
treatment at the VAMC in Birmingham were received showing his
treatment primarily for vision problems, vascular problems
and complications of diabetes.
In October and December 1996, and again in April 1997, the
National Personnel Records Center (NPRC) in St. Louis was
contacted and asked for copies of the veteran's service
personnel and unit records. NPRC replied that although it
had conducted extensive searches for the veteran's records,
the record had been charged out of file and could not be
located.
The U.S. Army & Joint Services Environmental Support Group
(ESG) was also contacted and asked to provide any information
to show whether the veteran was engaged in combat. In an
August 1996 response, ESG wrote:
After reviewing your recent
correspondence to us we have determined
that the information received is
insufficient for the purpose of
conducting meaningful research on behalf
of [the veteran], at this time. Your
correspondence did not provide us with
[the veteran's] stressor information.
Nevertheless, ESG was able to prove a unit history for one of
the units in which the veteran served. ESG added that future
requests should include a copy of the veteran's DA Form 20.
In October 1997, the RO readjudicated the veteran's claim
again denying service connection for PTSD because “the
evidence available for review does not establish that a
stressful experience occurred.”
Although ESG noted that it had not been supplied with a list
of the veteran's claimed stressors, or a copy of his
personnel records to include his DA Form 20, the RO never
resubmitted a request containing this information. The Board
specifically indicated in the June 1996 remand that the RO
should prepare a summary of the veteran's claimed stressors
and forward this information to ESG; however, this clearly
was not done. The United States Court of Veterans Appeals
(Court) has held that a remand confers on the veteran, as a
matter of law, the right to compliance with the remand
orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). The
RO should prepare a list of the veteran's alleged stressors,
and forward this along with a copy of the veteran's service
personnel records to the U.S. Armed Services Center for
Research of Unit Records (USASCRUR), formerly the “United
States Army and Joint Services Environmental Support Group”
(ESG), in an attempt to verify the claimed stressors. In
this respect, the Board acknowledges that the information
provided by the veteran may not be as complete as the
USASCRUR will need to verify the existence of the appellant’s
claimed stressor. Nevertheless, the provisions of the VA
Adjudication Procedure Manual M21-1 (Manual M21-1) pertaining
to the adjudication of PTSD provide that, “where records
available to the rating board do not provide objective or
supportive evidence of the alleged in service traumatic
stressors, it is necessary to develop this evidence.” Manual
M21-1, Part VI, 7.46(f)(2). Accordingly, as the development
outlined in Manual M21-1, includes providing the information
submitted by the veteran to the USASCRUR, such development is
mandatory.
For the reasons noted above and to ensure full compliance
with due process requirements, the case is REMANDED to the RO
for the following development:
1. The RO should again review the file
and prepare a summary of all the claimed
stressors. The RO is specifically
directed to the January 1997 letter from
the veteran which appears to be the most
complete description of the claimed
stressors. This letter refers to the
following four events:
a. While with the 525 QM POL Yard
at Nha Trang, in July 1970, a Sgt.
Khan was killed by a mortar attack.
b. While with the 525 QM POL Yard
at Nha Trang, in July 1970, a Sgt.
Jackson of the supply squadron at
Nha Trang was killed by a machete
blow in downtown Nha Trang.
c. While with the 525 QM POL Yard
at Nha Trang, in August 1970, a Sgt.
Collet was killed by a mortar
attack.
d. While with the 524 QM POL Yard
at Cam Ran Bay, (no date or name), a
Sgt. was killed while cutting in
half a 55 gallon drum with a
blowtorch.
A summary of the veteran's claimed
stressors and all associated documents
showing the units to which the veteran
was assigned while in Vietnam should be
sent to the U.S. Armed Services Center
for Research of Unit Records (USASCRUR),
formerly the “United States Army and
Joint Services Environmental Support
Group (ESG)”, 7798 Cissna Road,
Springfield, VA 22150. See VA MANUAL M21-
1, Part VI, Paragraph 7.46 (1992). They
should be requested to provide any
information to show whether the veteran
was engaged in combat with the enemy and
to corroborate the veteran’s alleged
stressors. A copy of the veteran’s DD
214 and his 201 file, if available,
should also be forwarded to the USASCRUR
with the request. The RO is reminded
that a copy of the veteran's DA Form 20
is already located in the claims file.
2. Following the above, the RO must make
a specific determination, based upon the
complete record, with respect to whether
the appellant was exposed to a stressor
or stressors in service, and, if so, the
nature of the specific stressor or
stressors. The RO must specifically
render a finding as to whether the
appellant “engaged in combat with the
enemy.” If the RO determines that the
record establishes the existence of a
stressor or stressors, the RO must
specify what stressor or stressors in
service it has determined are established
by the record. In reaching this
determination, the RO should address any
credibility questions raised by the
record.
3. If and only if the RO determines that
the veteran was exposed to a stressor or
stressors in service, the veteran should
be scheduled for another VA psychiatric
examination. The examination should be
conducted with consideration of the
criteria for post-traumatic stress
disorder and other psychiatric disorders.
The RO must specify, for the examiner, the
stressor or stressors that the RO has
determined are established by the record.
The examiner must be instructed that only
those events may be considered for the
purpose of determining whether the
appellant was exposed to a stressor in
service. The examination report should
include a detailed account of all
pathology found to be present. If there
are different psychiatric disorders than
post-traumatic stress disorder, the
psychiatrist should reconcile the
diagnoses and should specify which
symptoms are associated with each of the
disorder(s). If certain symptomatology
cannot be disassociated from one disorder
or another, it should be specified. If a
diagnosis of post-traumatic stress
disorder is appropriate, the examiner
should specify the credible “stressors”
that caused the disorder and the evidence
upon which they relied to establish the
existence of the stressor(s). The
examiner should also describe which
stressor(s) the veteran reexperiences and
how he reexperiences them. The
psychiatrist should describe how the
symptoms of post-traumatic stress disorder
affect his social and industrial capacity.
The report of examination should include a
complete rationale for all opinions
expressed. All necessary special studies
or tests including psychological testing
and evaluation such as the Minnesota
Multiphasic Personality Inventory (MMPI)
and the Mississippi Scale for Combat-
Related Post-Traumatic Stress Disorder are
to be accomplished. Copies of the test
results should be included with the
examination report. The examiner should
assign a numerical code under the Global
Assessment of Functioning Scale (GAF). It
is imperative that the physician include a
definition of the numerical code assigned.
Thurber v. Brown, 5 Vet. App. 119 (1993).
The diagnosis should be in accordance with
the American Psychiatric Association:
DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL
DISORDERS (4TH ed., 1994). The entire
claims folder and a copy of this remand
must be made available to and reviewed by
the examiner prior to the examination.
4. Following completion of the above
actions, the RO must review the claims
folder and ensure that all of the
foregoing development has been conducted
and completed in full. If any
development is incomplete, appropriate
corrective action is to be implemented.
Specific attention is directed to the
examination reports. If the examination
reports do not include fully detailed
descriptions of pathology and all test
reports, special studies or adequate
responses to the specific opinions
requested, they must be returned for
corrective action. 38 C.F.R. § 4.2
(1998) (“if the [examination] report
does not contain sufficient detail, it is
incumbent upon the rating board to return
the report as inadequate for evaluation
purposes.”). Green v. Derwinski, 1 Vet.
App. 121, 124 (1991); Abernathy v.
Principi, 3 Vet. App. 461, 464 (1992);
and Ardison v. Brown, 6 Vet. App. 405,
407 (1994).
5. Subsequently, the RO should consider
the issue on appeal. In this regard,
the RO should give full consideration to
whether the issue is well grounded.
Once the foregoing has been accomplished and, if the veteran
remains dissatisfied with the outcome of the adjudication of
the claim, both the veteran and his representative should be
furnished a supplemental statement of the case covering all
the pertinent evidence, law and regulatory criteria. They
should be afforded a reasonable period of time in which to
respond.
Thereafter, the case should be returned to the Board for
further appellate consideration. The veteran needs to take
no action until so informed. The purpose of this REMAND is
assist the veteran and to obtain clarifying information. The
Board intimates no opinion as to the ultimate outcome of this
case.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
BETTINA S. CALLAWAY
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1998).
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